New York City owns almost 1,200 public school buildings that sit empty on nights and weekends. To earn some extra income, the city rents out the empty schools to tens of thousands of community groups for any meetings that might be of interest to the community: Boy Scouts, drama clubs, labor unions senior citizen groups, etc. In 2011 alone, the NYC issued over 122,000 permits for using the schools.
But there is one group that is forbidden from using the facilities: churches.
According to the Becket Fund, “city bureaucrats decided that letting a church meet in an empty school would be unconstitutional. So it banned religious worship services—and only religious worship services—from its empty schools.”
The Bronx Household of Faith, an inner-city church serving one of the roughest neighborhoods in NYC, filed suit against this discrimination. That lawsuit, The Bronx Household of Faith v. Board of Education of the City of New York, has been ongoing for 20 years and has been to the Second Circuit Court of Appeals five times.
As Michael Stokes Paulsen argues, it’s time for the Supreme Court to settle the issue:
The justices really ought to take this one, both to slap down an intransigent Second Circuit and to vindicate a core constitutional principle: The Establishment Clause of the First Amendment does not in any way authorize, and the Free Speech and Free Exercise Clauses do not permit, direct government discrimination against religion, religious persons, religious groups, or religious expression in government programs, policies, benefits, or forums. Ever.
Government may not directly exclude religious persons or beneficiaries from programs or benefits available to other persons or groups, just because they are religious. And government may not jigger its categories to artfully gerrymander religious persons, organizations, and institutions out of equal inclusion in such programs or benefits. Ever.
The two-decade epic course of the Bronx Household of Faith litigation is almost worthy of its own Lord of the Rings–style movie trilogy. But the core issue is really quite simple. A fledgling church has long sought to use (paying the customary fee) New York City public-school buildings for weekend worship services, on the same terms as school buildings are made available to a wide array of other community groups for after-school-hours uses. However, the New York City Board of Education has persistently refused to treat the Bronx Household of Faith the way it treats every other community group, precisely because this community group wishes to engage in “religious worship.”